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Expert Privilege - New Changes
 

Expert Privilege - New Changes

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This presentation discusses the December 2010 changes to the federal rules of civil procedure regarding expert privilege and the differences between a consulting and testifying expert.

This presentation discusses the December 2010 changes to the federal rules of civil procedure regarding expert privilege and the differences between a consulting and testifying expert.

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    Expert Privilege - New Changes Expert Privilege - New Changes Presentation Transcript

    • Expert Privileges – New Changes
      Presented to
      Dallas Bar Association
      Environmental and Natural Resources Law Section
      July 28, 2011
      Presented by
      Cindy Bishop
      Gardere Wynne Sewell LLP
      Dallas, Texas
      cbishop@gardere.com
    • Avoiding Disaster
      Privilege 101
      Types of Experts
      Consulting versus Testifying
      Old Rules
      New Federal Rules effective December 1, 2010
      Tips for Getting Hired
    • Privileges
      Attorney-Client Privilege: Confidential communications made for the purpose of facilitating the rendition of professional legal services to the client:
      (A) between the client or a representative of the client and the client’s lawyer or a representative of the lawyer:
      (B) between the lawyer and the lawyer’s representative;
      * * *
      or (D) between representatives of the client or between the client and a representative of the client
      Tex. R. Evid. 503(b)(1).
    • Attorney-Client Privilege (continued)
      (1) A “client” is a person, public officer, or corporation, association, or other organization or entity, either public or private, who is rendered professional legal services by a lawyer, or who consults a lawyer with a view to obtaining professional legal services from that lawyer.
      (2) A “representative of the client” is:
      (A) A person having authority to obtain professional legal services, or to act on advice thereby rendered, on behalf of the client, or
      (B) any other person who, for the purpose of effectuating legal representation for the client, makes or receives a confidential communication while acting in the scope of employment for the client.
    • Work Product Privilege
      Texas Rule of Civil Procedure 192.5:
      (1) material prepared or mental impressions developed in anticipation of litigation or for trial by or for a party or a party’s representatives, including the party’s attorneys, consultants, sureties, indemnitors, insurers, employees or agents; or
      (2) a communication made in anticipation of litigation or for trial between a party and the party’s representatives or among a party’s representatives, including the party’s attorneys, consultants, sureties, indemnitors, insurers, employees, or agents.
      See also FRCP 26(b)(3)(A)
    • Exceptions to Privileges
      Facts
      Waiver
      Sent to state agency
      Discussed with or sent to a third party
      Reviewed by a testifying expert
    • Testifying Expert(old version)
      A party must disclose the identity of any expert witness it may use at trial
      Federal Rule: This disclosure must be accompanied by a written report – prepared by and signed by the witness. Report must contain:
      A complete statement of all opinions
      Any exhibits that will be used to summarize or support them
      The witness’ qualifications, including a list of all publications authored in the previous ten years
      A list of all other cases in which, during the previous four years, the witness testified as an expert at trial or by deposition; and
      A statement of the compensation to be paid for the study and testimony in the case
      The data or other information considered by the witness in forming them
      Fed. R. Civ. Proc. 26(a)(2)
    • Testifying Expert, cont.
      Texas Rule: A party may discover the following information regarding a testifying expert:
      Expert’s name, address and phone number;
      Subject matter on which a testifying expert will testify;
      Facts known by the expert that relate to or form the basis of the expert’s mental impressions and opinions formed
      Expert’s mental impressions and opinions and any methods used to derive them
      Any bias
      All documents, tangible things, reports, models, or data compilations that have been provided to, reviewed by, or prepared by or for the expert in anticipation of a testifying expert’s testimony
      Current resume and bibliography
      Tex. R. Civ. Proc. 192.3(e)
    • Testifying Expert, cont.
      The Problem
    • Consulting Expert, Part I
      Ordinarily, a party may not discover facts known or opinions held by an expert who has been retained or specifically employed by another party in anticipation of litigation or to prepare for trial and who is not expected to be called as a witness at trial
      BUT
      A party may discover facts, etc. on showing exceptional circumstances under which it is impracticable for the party to obtain facts or opinions on the same subject by other means.
      Fed. R. Civ. Proc. 26(b)(4)(B)
    • Consulting Expert, Part II
      A party may discover information regarding a consulting expert whose mental impressions or opinions have been reviewed by a testifying expert.
    • Fact Witness vs. Expert
      Personal Knowledge of the Facts (and how the facts were collected) vs. Opinions Based on the Facts
      Can facts witness and testifying expert be the same?
      Can facts witness and consulting expert be the same?
    • ?
      Privileged
      Privileged
      Privileged
      Privileged
      Attorney-Client Privilege
      CLIENT
      EH&S
      CONSULTANT
      FACTS
      ATTORNEY
      In-House
      ATTORNEY
      Law Firm
    • Privileged
      Privileged
      Privileged
      Privileged
      Attorney-Client Privilegeand the Consulting Expert
      CLIENT
      EH&S
      CONSULTING
      EXPERT
      Privileged
      FACTS
      ATTORNEY
      In-House
      ATTORNEY
      Law Firm
    • CLIENT
      EH&S
      CONSULTANT
      TESTIFYING
      EXPERT
      Privileged
      Privileged
      Privileged
      FACTS
      Privileged
      ATTORNEY
      In-House
      Privileged!
      ATTORNEY
      Law Firm
      Attorney-Client Privilegeand the Testifying Expert
    • Testifying Expert Issues
      Produce drafts?
      Produce documents “and other information” considered by the expert?
      Don’t forget emails and electronic documents.
    • Changes to the Federal RulesDecember 1, 2010
      26(a)(2)(B) – Testifying Expert Disclosure
      Old Rule:
      the data or other information considered by the witness in forming them;
      Change:
      the facts or data considered by the witness in forming them
    • Changes
      26(b)(4)(B) Trial-Preparation Protection for Draft Reports or Disclosures.
      Rules 26(b)(3)(A) and (B) protect drafts of any report or disclosure required under Rule 26(a)(2), regardless of the form in which the draft is recorded.
    • Changes
      26(b)(4)(C) Trial-Preparation Protection for Communications Between a Party’s Attorney and Expert Witnesses.
      Rules 26(b)(3)(A) and (B) protect communications between the party’s attorney and any witness required to provide a report under Rule 26(a)(2)(B), regardless of the form of the communications, except to the extent that the communications:
      relate to compensation for the expert’s study or testimony;
      identify facts or data that the party’s attorney provided and that the expert considered in forming the opinions to be expressed; or
      identify assumptions that the party’s attorney provided and that the expert relied upon in forming the opinions to be expressed.
    • HYPOTHETICALS
    • Expert draft report prepared for attorney
      Privileged report? ____ Y ____ N
    • Testifying expert emails attorney with his thoughts on the case.
      Privileged email? ____ Y ____ N
    • Lawyer discusses case’s merits with testifying expert.
      Is conversation privileged?
      ____ Y ____ N
    • Testifying expert reviews consulting experts notes/memos/report.
      Are the documents privileged?
      ____ Y ____ N
    • With litigation pending, consultant talks to client without involving an attorney.
      Privileged communication? ____ Y____ N
    • Consultants -How to Avoid Disaster
      Treat all written communications (including invoices and proposals) as documents that will be produced in litigation and shown to a jury
      Discuss protocol BEFORE writing anything (e.g., what to do about drafts)
      Do not draw conclusions unless asked – stick to the facts
      Only do what was requested by the attorney/client – do not elaborate
    • Consultants – How to Avoid Disaster II
      Do not discuss the case with non-lawyer clients without checking with the attorney
      Keep track of EVERYTHING you receive and review for the case
      If you have been retained as a consulting expert (or do not know), mark written documents as PRIVILEGED – PREPARED AT THE REQUEST OF COUNSEL
      If you have a question – CALL the attorney
    • How to Get Hired
      Testifying experience
      CV contains relevant experience for this case
      Well-written CV – no grammar errors
      No adverse positions in prior matters
      Articles/Papers/Reports
      Prior testimony (transcripts)
      Follow directions
    • Expert Privileges – New Changes
      Presented to
      Dallas Bar Association
      Environmental and Natural Resources Law Section
      July 28, 2011
      Presented by
      Cindy Bishop
      Gardere Wynne Sewell LLP
      Dallas, Texas
      cbishop@gardere.com